Federal Judge Went Too Far in Lawsuits, a Court Says

Something about the cases seemed wrong. The lawsuits, scores of them, accused businesses of failing to provide proper access for disabled customers. Defendants who lost had to pay the plaintiff’s legal fees, and they piled up in case after case. Last year, a federal judge in Brooklyn, citing “troubling litigation tactics,” denied legal fees, based in part on an unusual step by his chambers. His staff members investigated the matter outside the courtroom.

Now a federal appeals court is saying he went too far.

The judge, Sterling Johnson Jr., sent staff members to visit several Brooklyn businesses that were sued by Mike Costello, a paraplegic man, and found that most if not all were never made more accessible to disabled people.

The judge used the observation as part of a strident ruling last year denying more than $15,000 in legal fees to Mr. Costello’s lawyers, Ben-Zion Bradley Weitz and Adam Shore, finding that their lawsuits did nothing to ensure that Mr. Costello or any other disabled person had better access to the businesses.

But this week the appellate court reversed Judge Johnson’s decision and took the rare move of ordering that the case be assigned to a different judge. The appellate panel found that while Judge Johnson may have been correct in his observations that the businesses had not been repaired, and while most of the arguments in the appeal “lack merit,” judges are not permitted to observe, or take “judicial notice,” of facts that are subject to dispute.

“While we do not question the well-respected judge’s impartiality — or even his conclusions — we remand this case to a different district judge,” the three-judge panel wrote in its opinion, filed with the United States Court of Appeals for the Second Circuit on Tuesday.

Oliver Koppell, who filed the appeal seeking legal fees for Mr. Weitz and Mr. Shore, said he was delighted. “We think that it confirms our belief that Judge Johnson was biased against the lawyers here and he did everything he could, including most inappropriately going to the restaurants,” Mr. Koppell said.

The appellate ruling was the latest development in continuing efforts in Federal District Court in Brooklyn to control the lawsuits. In 2012, The New York Times reported on several hundred lawsuits brought by lawyers who found local restaurants and shops that were not in compliance with federal law — because of narrow aisles and no entry ramps — and then recruited people with disabilities as plaintiffs, even if they had never been to the businesses before.

Under the Americans with Disabilities Act, people who have been denied safe and equal access can sue businesses to make physical improvements. The plaintiffs are not entitled to significant monetary damages, but their lawyers are entitled to fees.

In his opinion denying legal fees last year, Judge Johnson said that the lawsuits were “disingenuous at best” and that “these tactics will no longer be tolerated.” In an interview on Thursday, he said that it was unusual to visit the stores but that the cases before him had also been unusual. He said that despite the appellate ruling, he was satisfied that Mr. Weitz and Mr. Shore were no longer filing cases.

“They have their job to do and I have my job to do,” Judge Johnson said of the appellate panel. “They felt it was wrong. Maybe it was, maybe it wasn’t. But the bottom line is the guy is not doing it anymore.”

Stephen Gillers, a professor of legal ethics at New York University School of Law, said Judge Johnson could have denied the legal fees to Mr. Weitz and Mr. Shore. “Judge Johnson could have done what he did and gotten affirmed if he had not gone one step further and visited the locations,” Mr. Gillers said. “Judges are not supposed to do their own investigations. Judges are supposed to let the lawyers introduce evidence and make a decision.”

Mr. Gillers added: “When there is need for physical inspection of a site, the judge takes the lawyers with him. In other words, that’s like a movable courtroom.”

A version of this article appears in print on , on Page A24 of the New York edition with the headline: Federal Judge Went Too Far in Lawsuits, a Court Says. Order Reprints | Today’s Paper | Subscribe